A Guide to the Law of Securitisation in Australia - Clayton Utz

11 Listing of debt securities11.1 IntroductionThis section deals with the requirements for listing debtsecurities on the Australian Stock Exchange (ASX).To satisfy the requirements of some investors whose mandatesrequire securities to be listed, issuers often seek to list theirsecurities on an internationally recognised exchange. Issues ofdebt securities into the global or euro markets are typically listedon exchanges in offshore financial centres such as London,Ireland or Luxembourg. Listings on these exchanges are normallyeffected by offshore listing agents, and depending on thecomplexity of the listing rules for the relevant exchange, offshorelegal counsel may also be appointed.Issues of debt securities into the Australian market are morelikely to satisfy investor listing requirements by seeking aquotation of their debt securities on the ASX. Listing on theASX has been rare in the past, and is still not usual, but hasincreasingly occurred as “domestic” Australian dollar issues ofnotes are increasing sold offshore including to investors whorequire, or would prefer, that the notes be listed.11.2 ASX requirements for listing of debt securitiesBefore an issue of debt securities can be quoted on the ASX, thelisting entity must:(a) apply for admission to the official list of the ASX as an ASXDebt Listing by completing an application and providingcertain prescribed information;(b) be a public company limited by shares, a governmentborrowing authority, a public authority or an entity approvedby the ASX;(c) have net tangible assets at the time of admission of at leastA$10 million (or be irrevocably guaranteed by a parent whichmeets this asset test for the period of the quotation of thesecurities and agrees to provide certain undertakings);(d) be seeking a quotation of debt securities only (as opposed toequity securities or convertible notes) in an aggregate valueof at least A$10 million and for an issue price of at least 20cents (special rules also apply to partly paid securities);(e) be granted quotation of all the securities that are in the classfor which it seeks quotation;(f) satisfy any CHESS requirements relating to the settlement ofthe securities;(g) comply with the timetable prescribed by the ASX for interestpayments;(h) appoint a person to be responsible for communication withASX in relation to listing matters; and(i) agree to provide (and authenticate) documents electronicallyto the ASX and establish the facilities required for thispurpose.If the listing entity is a foreign entity, certain additional rulesapply. If the listing entity has already been admitted to theofficial list as an ASX Debt Listing, the quotation of additionalsecurities subsequently issued by that entity will be governed byanother similar set of rules.Where the listing entity is an issuer trustee, it is unlikely tosatisfy the requirements in (b) above unless it is approved by theASX. Additionally, because of the nature of securitisedtransactions and the debt securities, the subject of the listingapplication (which are usually settled through Austraclear),waivers of the requirements in (c), (f) and (g) above are typicallygranted by the ASX on application by the listing entity.The listing entity gives certain warranties and indemnities to theASX in the listing application including that the issue ofsecurities to be quoted complies with the law, and is not for anillegal purpose.Fees will be payable by the listing entity in respect of each listingapplication.Quotation of any entity’s securities is in the ASX’s absolutediscretion. If a listing entity is admitted to the official list as anASX Debt Listing, the application form, the informationmemorandum and the other transaction documents whichconstitute the issuer trust or are otherwise relevant to the termsof the issue may be made publicly available by the ASX.11.3 Listing rules form contract between ASX and trusteeThe admission of entities to the official list and the quotation onthe ASX of debt securities issued by that entity are governed bythe ASX listing rules. These rules, which are contractuallybinding on the listed entity, also govern the ongoing disclosureregime and reporting requirements applicable to listed entitiesand some aspects of a listed entity’s conduct.The key continuous disclosure rule is listing rule 3.1. Thisprovides that once an entity is or becomes aware of anyinformation concerning it that a reasonable person would expectto have a material effect on the price or value of the listedsecurities, the entity must immediately tell the ASX thatinformation. While there are exceptions in listing rule 3.1A,63